Maehr v. U.S. Department of State
5 F.4th 1100
| 10th Cir. | 2021Background
- In 2015 Congress enacted the FAST Act, authorizing denial of new passports and discretionary revocation of existing passports when the IRS certifies a taxpayer has an unpaid, legally enforceable federal tax liability of $50,000 or more (26 U.S.C. § 7345). The sanction requires no individualized showing of abroad assets or flight risk.
- Passport revocation is treated as a collateral tax sanction intended to incentivize tax compliance rather than to address national-security or travel-specific harms.
- Jeffrey Maehr, owing roughly $250,000 and subject to prior IRS proceedings, had his passport revoked after certification; he sued the State Department challenging the revocation as unconstitutional.
- The district court dismissed for failure to state a claim, concluding revocation survived rational-basis review; the court had subject-matter jurisdiction under 28 U.S.C. § 1331 and sovereign-immunity waiver under 5 U.S.C. § 702.
- The Tenth Circuit affirmed. The court unanimously rejected Maehr’s Privileges and Immunities and ne exeat arguments; a majority (Matheson, joined by Phillips) rejected his substantive due process challenge under the precedent that international-travel limits ordinarily receive at most rational-basis review, while Judge Lucero concurred in the judgment but wrote separately advocating that substantial international-travel restrictions ordinarily merit intermediate scrutiny and that Maehr failed to brief that standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction & sovereign immunity | Maehr sought injunction restoring passport; court lacked jurisdiction or waiver unless constitutional violation shown | State argued federal-question jurisdiction under §1331 and APA §702 waives sovereign immunity | Court: §1331 supplies jurisdiction for constitutional claim; §702 waives immunity — jurisdiction and waiver exist |
| Privileges and Immunities Clauses (Art. IV & 14th) | Clauses protect international-travel right and thus constrain federal passport revocation | Clauses apply to states (not federal actors); caselaw confines "right to travel" to interstate travel | Court: Clauses do not apply to federal government and do not protect international travel; claim rejected |
| Ne exeat republica/common-law writ | Maehr argued passport revocation must meet ne exeat standards (preliminary-injunction-like showing) because both restrain exit | Government: FAST Act revocation is a statutory, administrative, due-processed scheme distinct from equitable ne exeat writs | Court: Ne exeat precedents are inapplicable; statutory revocation differs in scope, process, and limitations; claim rejected |
| Substantive due process — right to international travel and standard of review | Maehr: international travel is a fundamental right; revocation requires strict scrutiny | State: at most rational-basis review applies; passport revocation rationally furthers tax-collection interest | Court (majority): under Supreme Court precedent international travel is not a fundamental right; §7345 survives rational-basis review; judgment affirmed. Judge Lucero (concurring in judgment): intermediate scrutiny is the appropriate standard for substantial restraints on international travel, but Maehr failed to brief it so outcome must stand |
Key Cases Cited
- Kent v. Dulles, 357 U.S. 116 (1958) (recognizes protection for freedom to travel abroad and stresses its historic importance)
- Aptheker v. Sec’y of State, 378 U.S. 500 (1964) (struck down broad statutory passport restriction as insufficiently tailored to governmental objectives)
- Zemel v. Rusk, 381 U.S. 1 (1965) (upheld location-specific travel restrictions where justified by national security and narrowly applied)
- Califano v. Aznavorian, 439 U.S. 170 (1978) (applied rational-basis review to a statute with only incidental effects on international travel)
- Haig v. Agee, 453 U.S. 280 (1981) (upheld passport revocation on national-security grounds; emphasized deference where revocation is narrowly related to compelling interests)
- Bell v. Hood, 327 U.S. 678 (1946) (federal question jurisdiction supports injunctive relief for asserted constitutional violations)